an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In tomorrow's New York Times, David Brooks's column is titled (presumably not by him) "From Freedom to Authority." The general thesis is that "we're moving from what you might call loose conservatism to tight conservatism. We're seeing a conservatism that emphasizes freedom give way to a conservatism that emphasizes authority." The most remarkable sentences are the following:
"Middle-class suburbanites understood this shift far more quickly than the professional conservatives in Washington. What people wanted post-9/11 was Giuliani-ism on a global scale — someone who was assertive and decisive enough to assume authority and take situations that seemed ungovernable and make them governable."
As a matter of fact, I think that Ruldoph Guliani behaved quite commendably in the immediate aftermath of September 11. That being said, I think there is little doubt that he was, prior to that date and then again about three months later, the most truly fascistic major political figure in the United States. What Brooks, who,ironically or not, is regarded as a "moderate" and relatively non-ideological conservative (at least by EJ Dionne, his regular interlocutor on NPR), is calling for is an ever more Schmittian authoritarian executive who pays little regard to constitutional niceities. One name for this is fascism.
To be completely candid, I do believe that one of the reasons for such calls is that our constitutional structure makes governance so difficult. As Kim Lane Scheppele and Oren Gross have both recently argued, there are a spate of "emergency powers" laws on the books that presidents often take advantage of, so that, increasingly, "the emergency is the norm," again as Schmitt might have predicted. One reason for the appeal of a Schmittian presidency is the perception that ordinary government has broken down in the perpetual gridlock that appears to be Washington (save for cutting the taxes of the rich). As I have also argued in other venues, Schmitt's writings on the Weimar Parliament are all too relevant these days. It is not good news, when all is said and done, that less than a quarter of the public (22%) approve of Congress or have any real confidence in its own capacity to serve the public interest.
Let me also say a word or two about Marty's response to my earlier posting on Clinton. First, I agree with him completely that Bush is worst than Clinton in almost every conceivable way, though, as a matter of fact, I was never impressed by Clinton's regard for civil liberties. My point in my previous post is that the kind of defense offered by liberals during the impeachment controversy--that Clinton must be guilty of a truly "high crime and misdemeanor" to make impeachment thinkable and that calls for his resignation were feeding the unwise transformation of the American political system from one that depended on fixed-term presidencies to a more parliamentary system--are coming back to bite us now. For a number of months after the initial disclosures about Monica, I believed that Clinton should resign. Then, I was made so angry the the Republican vendetta that I ended up applauding his remaining in office. I now believe I was right the first time. What exactly was the benefit of "three more years" of Bill Clinton between January 1998-2001? Remind me of his accomplishments during those years.
Marty and I absolutely agree that the key to understanding why Clinton got away with very little and Bush with almost everything has to do with partisan control of Congress and, therefore, of the ability to investigate. Even Republicans are becoming embarrassed at the bankruptcy of congressional oversight over this lawless and incompetent Administration. Incidentally, one of my other assertions in my forthcoming book is that Republican professionals had no desire actually to get rid of Clinton--they didn't want an incumbent Al Gore--but, rather, knew that bicameralism + the 2/3 requirement for conviction in the Senate would give House Republicans a "free pass" with regard to their posturing about impeachment. It was all a charade, save for a very few principled Republicans who really were offended, rightly or not, by the absolutely reckless sexual behavior and then lying and, finally, perjury, committed by a man who could indeed have been a great president had he been able to discipline himself more. That is why so many Democrats speak of the "tragedy" of Bill Clinton--a person of enormous ability--whereas almost no one thinks well enough of George Bush to refer to him as a "tragic figure" (unlike, for some, Colin Powell, say).
Agreed: many of the disasters that have befallen this country in the last eight years would not have happened if Clinton had resigned.
Somewhere in the Secret Service archives there is a whole series of emails from me to whitehouse.gov laying out the reasons why he should resign, which I began to send as soon as it came out that he had lied to a grand jury.
That struck me, immediately, as a fundamental and unforgiveable blow against the separation of powers and the constitutional form of government.
Oddly enough, Clinton never replied to my emails.
And now, of course, we have a president who thwarts the judiciary not out of some temporary one-off lawyerly dodging on the witness stand, but from a settled ideology of contempt for the other branches of government.
Yup, it's fascism-lite, so far, and gaining in strength. And while Clinton now looks like small potatoes in comparison to Bush's crimes, I wish that both left and right had laid down a marker during that event that a president who lies to Congress or the Judiciary is an ex-president. We should have forced him out.
President Gore would have received an even bigger majority in 2000 than he did.
"What people wanted post-9/11 was Giuliani-ism on a global scale"
As a New Yorker and a supporter of Giuliani pre-9/11 I have to respectfully disagree.
There is a huge difference between "cracking down on squeegee men and mob bosses" and "trampling over the privacy rights, or at least the privacy concerns, of law-abiding citizens."
If you want the local equivalent of the Bush-Cheney-Hayden style of benevolent dictator, then look not to Rudy Giuliani but rather to Michael Bloomberg, who is a far more paternalistic, patronizing --and totally out of control -- philosopher-king mayor than Giuliani ever was.
Clinton's impeachment was not an attack on Clinton, but an attack on impeachment. The GOP wanted to blunt a weapon that had, in living memory, been threatened or used exclusively against them -- Watergate, Iran-Contra.
If they had actually gotten Clinton, that would have been langniappe.
Making a joke out of impeachment was the real goal. If the GOP succeeded in doing that, then they could act with impunity when next in the White House.
Which is exactly what is happening today.
The president daily shreds the Constitution, and anyone who so much as mentions impeachment is laughed out of the room.
With regard to learning about Carl Schmitt, there are two possibilities. The first is to read Schmitt himself, which is less of an ordeal than is the case for most German theorists, though there are definitely some opaque passages. Probably his most important book is Political Theology, just republished in a very good edition by the University of Chicago Press. Two other books are very much worth reading, The Concept of the Political and The Crisis of Parliamentary Democracy, both available in good paperback editions (by Chicago and Duke, respectively). Or, there is a superb introduction to his thought by William Scheurman, titled Carl Schmitt.
Schmitt is most definitely not someone to be embraced lightly, if at all. My argument is that he is perhaps the best theoretical guide to what seems to be taking place right now, NOT that he is someone to be particularly commended. He was, after all, the most important academic apologist for the rise of Hitler, But that does not mean that he isn't worth reading and thinking long and hard about, alas.
As someone wary about Giulani-ism, the suggestion Bloomberg is somehow comparable to Bush and co., well that seems to me absurd.
But, G. was what we were looking for on 9/11. Along with major snowstorms, that sort of thing brought out the best in him. He got sick, so could not run for senator, which is good ... the man simply is not senator material in my view. Not his forte.
As to Clinton. I thought a serious investigation was proper, though some fellow travellers were rather angry I suggested it. I don't think resignation was appropriate: for what? Being a cad? We knew that when he was elected. Caveat emptor. He did go too far and his weaknesses were tragic. But, sadly, predictable.
But, his opposition went off the deep end. A core were true believers, the rest (the same who let Bush get away w murder now, the "reasonable" sorts) cynical sorts who let them drag the country down with them.
If they did force Clinton out, the backlash might have been good in the end. But, the precedent dangerous. Also, Gore was tainted by the whole affair with problems himself.
Kircheimer is indeed relevant. I earlier mentioned Bill Scheurman's excellent short volume on Schmitt. His first book, From the Norm to the Exception (MIT Press) is a superb study of Schmitt, Kircheimer, and Franz Neumann.